It serves to be mindful of the rules on service
A claimant solicitor who served a claim form and particulars of claim in a £100,000 data protection claim by post on a local council office during the period of lockdown, has been criticised as exercising “poor judgement” by a High Court judge who granted the defendant’s application to set aside Judgment in Default and granted the defendant council relief from sanctions.
The general rule is that the period for filing a defence is (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgement of service under Part 10, 28 days after service of the particulars of claim.
The claimant’s solicitor in Stanley v London Borough of Tower Hamlets posted particulars of claim on 25 March, just a couple of days after the UK went into lockdown. As a result of the national emergency the council offices were closed and operating with skeleton staff none of whom, the council argued, had the relevant knowledge to identify urgent litigation documents.
Upon the council’s failure to respond the claimant’s solicitor applied for Judgment in Default. The High Court judge hearing the application to set aside the Judgment said that the claimant’s solicitor should have checked whether, in the circumstances, service by post was still possible and feasible.
Whilst the judge acknowledged the need to enforce compliance with the rules and to conduct litigation at proportionate cost, in setting aside the judgment in default and granting relief from sanctions, he said it was ‘unconscionable’ for the claimant to benefit from the Covid-19 crisis and gave permission to the council to file and serve an acknowledgement of service and defence within 14 days.
The decision suggests it is now advisable to discuss service with the proposed defendant in circumstances in which it is expected that a place of service will be closed or unattended due to Covid-19. How far a claimant needs to go in this regard remains to be seen and the decision has been criticised in commentary for being over-zealous but unless and until it is appealed it remains good law and claimants wishing to avoid the additional costs and delay in dealing with such satellite litigation will be well served to adhere to this additional layer of investigation and communication.
Posted on 9 July, 2020 by Ortolan